LEGISLATURES SHOULD CONDUCT HEARINGS AND CONSIDER LEGISLATION RECOGNIZING A CIVIL REMEDY FOR HARM ATTRIBUTABLE TO PORNOGRAPHY.

pornography.693

The Commission heard substantial testimony regarding a civil rights approach as a remedy for harms attributable to An ordinance encompassing the civil rights approach was originally proposed in Minneapolis, Minnesota, and a similar ordinance was enacted in Indianapolis, Indiana.694 In 1984, the Indianapolis-Marion County City-County Council found, in essence,

that pornography lowers the social standard of treatment of women as a class. The Council found the status of women and the opportunity for equality are undermined by the pornography industry's use of some women to target all women for abuse through making acts of violation into acts of sexual

693 See, Chicago Hearing, Vol. II, Catherine MacKinnon, p. 133; Chicago Hearing, Vol. II, Terese Stanton, p. 168; Houston Hearing, Vol. I, Diana Russell, p. 302; New York Hearing, Vol II, Andrea Dworkin, p. 129; Washington, D.C., Hearing, Vol. I, Dorchen Leidholt, p. 197.

694 See, Indianapolis-Marion County, Ind., Ordinance 35, ch. 16 (June 15, 1984).

entertainment.695

The harm of pornography is thus conceived to

be a form of discrimination on the basis of sex. 696

Pornography, in effect, exemplifies inequality in its
It has been defined in the proposed

violation of human rights.

-

ordinances as sexually explicit pictures or words that subordinate on the basis of sex when those presented are also shown being sexually exploited or brutalized for example, women presented as sexual objects enjoying rape, pain or humiliation, being penetrated by objects or animals, in postures of servility, submission or display, or in scenarios of degradation or torture in a context that makes these conditions sexual. 697

Men, children of both sexes, and transsexuals could

sue for similar violations under the ordinance.698

Victims and trained professionals described the harms associated with and attributable to pornography, as including rape, battery, sexual harassment, sexual abuse of children, and forced prostitution.699 Women have been coerced into pornographic performances by abduction, threats, drugs, and

695 Id. at S16-1(a)(2).

696 See generally, MacKinnon, Pornography, Civil Rights, and Speech, 20 Harv.C.R.-C.L. L. Rev. 171985).

697 Indianapolis-Marion County, Ind., Ordinance 35, ch. 16 (June 15, 1984).

699 See, Houston Hearing, Vol. I, Diana Russell, p. 285; Miami Hearing, Vol. II, Garrett, p. 19; Washington, D.C., Hearing, Vol. I, Dorchen Leidholt, Vol. I, p. 205; Washington, D.C., Hearing, Vol. I, Sarah Wynter, p. 183.

constant surveillance.

Pornography has been forced on unwilling viewers, typically children or women, in homes, in employment, and in public places. Some assaults have been found to be caused by specific pornographic materials providing instigation as well as instruction and legitimization for the acts. Many experiences of pornography-related humiliation, sexual degradation, enforced servility, and physical and mental abuse were substantiated. On the basis of this evidence, civil claims were created for four specified activities: (1) coercion into pornography, (2) forcing pornography on a person, (3) assault directly caused by specific pornography, and (4) trafficking in pornography (production,

sale, exhibition, or distribution).700 Injunctions and damages would be provided under narrowly specified conditions.701

The civil rights approach, although controversial702, is the only legal tool suggested to the Commission which is specifically designed to provide direct relief to the victims of the injuries so exhaustively documented in our hearings throughout the country. Most of the evidence that establishes the fact that pornography subordinates women and undermines their status and opportunities for equality comes from extra-judicial sources,

700 See, Indianapolis-Marion County, Ind., Ordinance 35, S16-3(g) (4)(7) (June 15, 1984).

702 See, Chicago Hearing, Vol. II, Nan Hunter, p. 101; Chicago Hearing, Vol. II, Burton Joseph, p. 4; Houston Hearing, Vol II, John Money, p. 34; Washington, D.C., Hearing, Vol. II, Barry Lynn, p. 169-70.

studies and individual accounts.703

The United States Supreme Court has recognized and relied upon social and behavioral science findings in several decisions. In Muller v. Oregon,704 the Supreme Court upheld the constitutionality of an Oregon law limiting women to a ten hour workday. 705 In support of the law, Louis D. Brandeis filed a brief containing what the Court called "a very copious collection" of "expressions of opinion from other than judicial sources."706 Brandeis' brief contained evidence about women's reactions to contemporary work conditions gathered from surveys, government statistics, factory reports, and opinions of employers, employees, and physicians.707 The Court relied on this evidence to sustain the Oregon law providing special protection for women in the workplace.708 This method of presenting an argument became known as a "Brandeis Brief."709

Almost half a century later, the Supreme Court relied on

703 See, MacKinnon, Pornography, Civil Rights, and Speech, 20 Harv.C.R.-C.L. L. Rev. 1(1985).

707

Levin & Moise, School Desegregation Litigation in the Seventies and the Use of Social Science Evidence - An Annotated Guide, 39 Law & contemp. Probs. 50, 51 (1975) (hereinafter cited as Levin & Moise, School Desegregation].

709

Levin & Moise, School Desegregation, supra, note 707,

at 51.

social science evidence in the landmark school desegregation decision of Brown

v.

Board of Education.710 In declaring

"separate but equal" schools unconstitutional, the Court found that segregated facilities have a detrimental effect on children.711 The Court agreed that,

has a

segregation with the sanction of law .
tendency to [retard] the educational and mental
developments of negro children and to deprive them of
some of the benefits they would receive
receive in a
racial [ly] integrated school system.

The Court added that "this finding is amply supported by modern authority, "713 and cited, among others, Kenneth Clark and Gunnar Myrdal.714 The Court's reliance on this material as a basis for finding discrimination was subject to some criticism.715 later occasion, the Court heard "a great deal of medical and sociological"716 evidence about alcoholism, but rejected it as

710 347 U.S. 483(1954).

711 Id. at 494.

On one

715

See, Cahn, Jurisprudence, 30 N.Y.U. L. Rev. 150(1955); Fiss, The Jurisprudence of Busing, 39 Law & Contemp. Probs. 194 (1975).

Powell v. Texas, 392 U.S. 514, 537(1968) (Black, J.,

716 concurring).